Mississippi defends 15-week abortion ban in appeals court

A federal court that rejected Mississippi's 15-week abortion ban should have let the state present evidence about whether a fetus experiences pain, an attorney for the state argued Monday.

Posted: Oct 7, 2019 5:48 PM

NEW ORLEANS (AP) — A federal court that rejected Mississippi's 15-week abortion ban should have let the state present evidence about whether a fetus experiences pain, an attorney for the state argued Monday.

But a lawyer for Mississippi's only abortion clinic said the Supreme Court has been clear that a woman has a right to have an abortion before the fetus is viable.

The arguments came during a hearing at the 5th U.S. Circuit Court of Appeals on a Mississippi law that would ban most abortions after 15 weeks of pregnancy. It's one of many laws pushed by conservative states in recent years, aimed at trying to persuade the increasingly conservative Supreme Court to further restrict the amount of time when abortion is legally available, or even to overturn the 1973 Roe v. Wade decision.

That decision said women have the right to terminate pregnancies until viability, when a fetus can survive outside the womb.

After Republican Gov. Phil Bryant signed Mississippi's law in 2018, the Jackson Women's Health Organization immediately sued. U.S. District Judge Carlton Reeves blocked the law from taking effect, writing that it "unequivocally" violates women's constitutional rights because it bans abortion weeks before viability.

Reeves wrote that viability must be determined by trained medical professionals, and the "established medical consensus" is that viability typically begins at 23 to 24 weeks after the pregnant woman's last menstrual period.

Mississippi and its supporters appealed to the 5th Circuit. Mississippi contends that Reeves overstepped his authority by only considering the case through the prism of viability.

"From that point on the outcome of this case was preordained," Paul Barnes, a special assistant attorney general, told the three-judge panel.

Barnes also suggested the 15-week standard had little effect on the Jackson clinic because they already refuse to perform abortions after 16 weeks.

"It is a prohibition for one week," Barnes said.

Hillary Schneller, a lawyer from the Center for Reproductive Rights which is representing the clinic, argued that the Supreme Court has been clear through decades of case law about a woman's right to an abortion before fetal viability.

"There is no dispute that 15 weeks is well before viability," she said.

At least one of the 5th Circuit judges seemed skeptical that viability should be the only standard. James C. Ho repeatedly asked whether a fetus feeling pain could ever be a factor in determining whether an abortion can be carried out. At one point, he asked if pain is "irrelevant."

Ho also questioned why discussion of the fetal pain question wasn't permitted during the lower court's proceedings.

"Where would we get that factual evidence if not at trial?" he asked.

The other justices — Patrick E. Higginbotham and James L. Dennis — asked few or no questions. Ho was nominated by President Donald Trump in 2017, Higginbotham by President Ronald Reagan in 1982 and Dennis by President Bill Clinton in 1995.

The 5th Circuit handles cases from Mississippi, Louisiana and Texas, and it's generally considered one of the most conservative appeals courts in the U.S.

Louisiana passed a 15-week abortion ban in 2018, but it takes effect only if the appeals court upholds the Mississippi law.

Even as the court fight continues over the 15-week ban, Mississippi lawmakers passed another law this year banning most abortions at about six weeks, when fetal cardiac activity can be detected. Reeves also blocked that law, saying it "smacks of defiance to this court." Attorneys are filing separate arguments about it to the 5th Circuit. The hearing Monday did not reference the 6-week ban.

Mississippi Coronavirus Cases

Data is updated nightly.

Cases: 250869

Reported Deaths: 5481
CountyCasesDeaths
DeSoto16841171
Hinds15890312
Harrison13037191
Rankin10439205
Jackson10128177
Lee8721135
Madison8071160
Jones6166108
Forrest5870117
Lauderdale5724177
Lowndes5238109
Lafayette486192
Lamar475363
Washington4734122
Bolivar3941106
Oktibbeha388179
Panola360475
Pontotoc358752
Monroe3487103
Warren337895
Union337457
Marshall336065
Neshoba3325150
Pearl River319492
Leflore2980104
Lincoln293385
Sunflower277569
Tate266659
Alcorn260651
Itawamba258858
Pike258176
Hancock253557
Prentiss242450
Scott241043
Yazoo237754
Copiah237449
Tippah236246
Simpson232367
Leake227864
Coahoma223154
Grenada215770
Covington208871
Marion206171
Adams201666
Winston198061
George197438
Wayne196130
Attala191658
Newton186542
Chickasaw181243
Tishomingo179659
Holmes167867
Jasper165134
Clay156732
Stone140218
Tallahatchie138234
Clarke136460
Calhoun133321
Smith118823
Yalobusha113834
Walthall111136
Noxubee109622
Greene108929
Montgomery108134
Carroll103721
Lawrence101217
Perry99131
Amite96425
Webster90624
Claiborne85125
Tunica84521
Jefferson Davis83825
Humphreys81524
Benton80323
Kemper75720
Quitman6758
Franklin65315
Choctaw59613
Wilkinson58125
Jefferson53019
Sharkey42417
Issaquena1586
Unassigned00

Alabama Coronavirus Cases

Cases: 417528

Reported Deaths: 6030
CountyCasesDeaths
Jefferson61313888
Mobile29768542
Madison26637185
Tuscaloosa20580268
Montgomery18696304
Shelby18310113
Baldwin16002179
Lee12261101
Morgan12093112
Etowah11604157
Calhoun10982200
Marshall10108107
Houston8474129
Cullman7960104
Limestone790174
Elmore7723101
DeKalb764697
St. Clair7460120
Lauderdale745183
Talladega6102108
Walker5852174
Jackson574441
Blount526483
Colbert525670
Autauga510355
Coffee434256
Dale391081
Franklin363445
Chilton333565
Covington326167
Russell323810
Escambia312442
Dallas300296
Clarke278233
Chambers277869
Tallapoosa2599107
Pike245829
Marion240549
Lawrence240447
Winston223835
Bibb213047
Geneva197431
Marengo197329
Pickens195231
Hale173742
Barbour171236
Butler167958
Fayette166026
Cherokee159630
Henry151119
Monroe144417
Randolph138535
Washington136526
Clay125246
Crenshaw118044
Lamar116619
Cleburne116023
Macon113335
Lowndes108735
Wilcox101221
Bullock98128
Perry95419
Conecuh92920
Sumter88726
Greene75323
Coosa60414
Choctaw51224
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